On December 4, 2019, the Islamabad High Court (IHC) heard a case challenging the criminal defamation sections (section 499: Defamation and 500: Punishment for Defamation) of the Pakistan Penal Code (PPC). The case titled “Asad Baig Vs. Federation of Pakistan” contends that criminal defamation laws act as a “prior restraint” and affects the fundamental freedom of speech granted under Article 19: Freedom of Speech, etc. of the Constitution of Pakistan.
The case was being presided over by Justice Miangul Hassan Aurangzeb, who admitted the petition and issued notices to the Attorney General and the Additional Attorney General.
Lead council Yasser Latif Hamdani explains the petition, “In the case we argued that Section 499 and 500 were ultra vires the constitution on the touchstone of Article 19. Defamation is not a claw back under the Article in question and therefore the colonial era criminal defamation law is offensive to the fundamental rights of individuals. We are argued that truth simpliciter under Section 499 and 500 are not defences but rather it requires a public purpose which makes the threshold of defence much higher. Therefore the sections must be struck down.”
David Kaye, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, has continued to express concern over criminal defamation laws that are still being used as a tool to silence dissent in Pakistan and several other countries.
For years, criminal defamation has been used all around the world against journalists, especially those who have been critical of the state and its policies. A recent example of this is the case of Shahzeb Jilani who was charged under Section 499 and 500 of the PPC in April 2019. Even though the case was later dismissed for lack of evidence, Jilani had already lost his job and was forced to leave Pakistan within a few months of the decision.
In the past few decades, attempts have been made to decriminalise defamation in a number of countries. In April 2017, Kenya was successful in achieving this goal when a High Court in Kenya declared that criminal defamation is inconsistent with the country’s constitution. A similar decision was made by the Supreme Court of Appeals in 2008 in South Africa. A number of countries have taken steps to decriminalise defamation include Montenegro, Maldives, Argentina, Sri Lanka and Ghana.